Filed 11/5/15 In re Stephon W. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re STEPHON W., a Person Coming B262415
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. YJ38152)
THE PEOPLE,
Plaintiff and Respondent,
v.
STEPHON W.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Irma J. Brown, Judge. Affirmed with modification.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and Analee J. Brodie, Deputy Attorney General,
for Plaintiff and Respondent.
* * *
The juvenile court found Stephon W. (minor) guilty of second-degree robbery and
assault with a deadly weapon, and placed him on probation. Minor appeals the
sufficiency of the evidence underlying his assault with a deadly weapon count and raises
three challenges to his sentence. We conclude that the court erred in announcing a
maximum term of imprisonment for a probationary sentence, but otherwise reject minor’s
challenges. Accordingly, we affirm with instructions to strike the court’s declaration of a
maximum term of imprisonment.
FACTS AND PROCEDURAL BACKGROUND
In early January 2015, minor and Devon Q. (Devon) approached a teenager on a
street corner. Devon pointed a gun at the teen’s chest and then at his head while minor
searched the teen’s pockets. After minor found and took an iPhone and cord, both minor
and Devon fled on foot. Devon was arrested minutes later with a backpack containing an
iPhone and an “air soft pistol.”
Because minor was 16 years old at the time of this incident, the People filed a
petition in juvenile court alleging “felony,” second-degree robbery (Pen. Code, § 211),
and alleging that a principal was armed with a firearm (id., § 12022, subd. (a)(1)). Before
trial began, the People orally amended the petition to allege assault with a deadly weapon
(id., § 245, subd. (a)(1)). After hearing the evidence, the juvenile court dismissed the
firearm enhancement because the “pellet gun” was not a “firearm.” The court
nevertheless found minor guilty of second-degree robbery and assault with a deadly
weapon, and declared him to be a ward of the court under Welfare and Institutions Code
1
section 602.
The juvenile court placed minor on probation, including a term of 30 days
community detention, 100 hours of community service and other standard conditions of
probation.
Minor timely appeals.
1 Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
2
DISCUSSION
I. Sufficiency of the Evidence
The crime of assault with a deadly weapon requires proof that the defendant
(1) “commit[ted] an assault upon the person of another,” (2) “with a deadly weapon or
instrument other than a firearm.” (Pen. Code, § 245, subd. (a)(1).) Minor does not
contest that Devon assaulted the teen or that minor aided and abetted Devon’s assault;
instead, he argues that there was insufficient evidence that the pellet gun Devon used in
that assault qualifies as a “deadly weapon.” In evaluating this challenge, we ask whether
the evidence “can reasonably support a finding” as to this element beyond a reasonable
doubt, and do so while viewing the evidence in the light most favorable to, and drawing
all reasonable inferences to support, that finding. (People v. Sigur (2015) 238
Cal.App.4th 656, 667.)
A “deadly weapon” is “‘any object, instrument, or weapon which is used in such a
manner as to be capable of producing and likely to produce, death or great bodily
injury.’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar), quoting In re
Jose R. (1982) 137 Cal.App.3d 269, 275-276; In re R.P. (2009) 176 Cal.App.4th 562,
567.) Some objects are “deadly weapons as a matter of law”; dirks and blackjacks so
qualify. (Aguilar, at p. 1029.) An object that is not “deadly per se” can still be a “deadly
weapon” if it is “used, under certain circumstances, in a manner likely to produce death
or great bodily injury.” (Ibid.) “In determining whether an object not inherently deadly
or dangerous is used as such, the trier of fact may consider [(1)] the nature of the object,
[(2)] the manner in which it is used, and [(3)] all other facts relevant to the issue.” (Ibid.)
Applying this test, screwdrivers and pencils have qualified as “deadly weapons.” (See
People v. Simons (1996) 42 Cal.App.4th 1100, 1106 [defendant brandished screwdriver];
People v. Page (2004) 123 Cal.App.4th 1466, 1472 [defendant held pencil to victim’s
neck].)
The pellet gun, as Devon used it in this case, qualifies as a “deadly weapon.” A
loaded and operable pellet gun can expel small pellets at high velocity, which makes it a
“deadly weapon” “as a matter of law.” (People v. Lochtefeld (2000) 77 Cal.App.4th 533,
3
535 (Lochtefeld) [pellet gun held at victim’s head, when gun was later tested and found to
be operational]; People v. Brown (2012) 210 Cal.App.4th 1, 8 [pellet gun shot at close
range].) Indeed, the reason why pellet/air guns do not qualify as “firearms” is because
they use air—rather than explosions—to propel their bullets. (In re Jose A. (1992) 5
Cal.App.4th 697, 700-701; accord, People v. Dixon (2007) 153 Cal.App.4th 985, 1001.)
Minor notes that the People did not introduce evidence that Devon’s pellet gun was
loaded and working, but it is well settled that a trier of fact may reasonably infer from an
assailant’s words and actions that a gun was loaded and operable. (People v. Rodriguez
(1999) 20 Cal.4th 1, 12; People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436-1437
[“criminals ‘do not usually arm themselves with unloaded guns when they go out to
commit robberies’”].) Here, as in Lochtefeld, Devon’s “own words and actions, in both
verbally threatening and in displaying and aiming the gun at others, fully supported the
jury’s determination that the gun was sufficiently operable.” (Lochtefeld, at p. 541.)
II. Sentencing Issues
A. Violation of section 702
Where a crime is punishable as either a felony or a misdemeanor, section 702
mandates that the juvenile “court shall declare the offense to be a misdemeanor or
felony.” (§ 702; see also Cal. Rules of Court, rule 5.795, subd. (a) [“the court must . . .
declare on the record that it has made such consideration and must state its determination
as to whether the offense is a misdemeanor or a felony”].) This mandate “serves the
purpose of ensuring that the juvenile court is aware of, and actually exercises, its
discretion” with respect to such “wobbler” offenses. (In re Manzy W. (1997) 14 Cal.4th
1199, 1207 (Manzy W.).)
Courts have interpreted this mandate “strict[ly].” (In re Jacob M. (1987) 195
Cal.App.3d 58, 65.) On the one hand, a juvenile court is not deemed to have made a
sufficient “declar[ation]” just because the petition charged the offense as a felony (Manzy
W., supra, 14 Cal.4th at p. 1208; In re Ricky H. (1981) 30 Cal.3d 176, 191, superseded on
other grounds by § 202 (Ricky H.)), just because the court imposed a “felony-level period
of physical confinement” (Manzy W., at p. 1208), or just because the court’s minute order
4
“reflect[s] that the juvenile court found the [crime] to be a felony” if the “transcript of the
hearing does not support this notation” (In re Dennis C. (1980) 104 Cal.App.3d 16, 23;
Manzy W., at p. 1208, citing In re Kenneth H. (1983) 33 Cal.3d 616, 619-620 (Kenneth
H.)). On the other hand, “a signed ‘Findings and Order’ which stated that the charged . . .
felony was to run concurrent . . . [is] an ‘explicit finding’ of felony status.” (Kenneth H.,
at p. 620, fn. 6, quoting In re Robert V. (1982) 132 Cal.App.3d 815, 823.)
Although the People do not oppose a remand on this issue, we conclude that the
juvenile court in this case made the requisite “declar[ation]” under section 702. In its
minute order, the court declared—on the line specifying that the “Offense is declared to
be a Felony (count(s) __) [or] misdemeanor (count(s) __)”—that counts 1 and 2 were to
be “Felon[ies].” Moreover, the minute order specifies that “Count [sic] 1 & 2 are both
strikes and 707(b) . . . offenses” and the court specifically advised minor that he had “just
been convicted or ha[d] a sustained petition as a strike.” Because only juvenile
adjudications as to certain felonies may be “strikes” under our “Three Strikes” law (Pen.
Code, § 667, subd. (d)(3); Welf. & Inst. Code, § 707, subd. (b); People v. Garcia (1999)
21 Cal.4th 1, 13 [so explaining]), the court’s determination that these offenses were
strikes is necessarily a declaration that they are felonies. Although the court could have
given a more fulsome explanation as to why she was exercising her discretion to declare
these crimes to be felonies, the combined record of the minute order and the court’s
pronouncements during the sentencing hearing indicate that she did so declare.
Even if we were to conclude that an even more express declaration on the record
was required (as rule 5.795, subdivision (a) seems to suggest), we conclude that any error
is harmless. The absence of a “formal declaration” does not “automatically” mandate a
remand; instead, remand depends on whether the juvenile court was “aware of, and
exercised its discretion” to declare the offenses felonies or misdemeanors. (Manzy W.,
supra, 14 Cal.4th at p. 1209.) Here, the court checked the box indicating “felonies”
rather than “misdemeanors”, and advised minor that his convictions were “strikes”; on
these facts, “remand would be merely redundant.” (Ibid.)
5
B. Violation of section 726, subdivision (d)(1)
Section 726, subdivision (d)(1), requires a juvenile court to specify the “maximum
term of imprisonment” “[i]f the minor is removed from the physical custody of his or her
parent . . . as the result of an order of wardship.” (§ 726, subd. (d)(1).) In this case,
minor was placed on probation (rather than removed from his parents’ custody), but the
juvenile court nevertheless fixed a maximum term of imprisonment. Minor objects.
Although appellate courts have treated the unnecessary fixing of a maximum term as
harmless error (In re Ali A. (2006) 139 Cal.App.4th 569, 574, fn. 2, overruled on other
grounds in In re A.C. (2014) 224 Cal.App.4th 590, 592), they have more recently started
striking the maximum term (In re A.C. (2014) 224 Cal.App.4th 590, 591-592.) We
adhere to this more recent precedent, and order the maximum term stricken from the
sentence.
C. Probation condition
A juvenile court may place a juvenile on probation and “impose and require any
and all reasonable conditions that it may determine fitting and proper to the end that
justice may be done and the reformation and rehabilitation of the ward enhanced.”
(§ 730, subd. (b); In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) Minor
contends that the juvenile court erred in imposing the following standard condition of
probation: “You must go to school every day. You must be on time to each class. You
must have good behavior at school. You must receive satisfactory grades.” Minor
concedes that this condition advances his rehabilitation (and thus is not an abuse of
discretion in that regard [People v. Olguin (2008) 45 Cal.4th 375, 379]), but asserts that it
is unconstitutionally overbroad. The question of constitutionality is one we review de
novo. (Sheena K., at pp. 887-889.)
Minor chiefly argues that the condition is overbroad because it requires him to be
at school on time every day, with no exception for tardiness or absences beyond his
control (such as family events or emergencies). But the lack of these exceptions does not
render the condition overbroad. In In re Damian M. (2010) 185 Cal.App.4th 1, for
example, the court upheld a probation condition following a juvenile’s conviction
6
requiring the juvenile’s parents to attend the juvenile’s school program notwithstanding
the possibility that this condition would be violated if the parents elected not to
participate. (Id. at pp. 6-7.) This possibility did not invalidate the underlying condition
because a court faced with such a “violation” could not “impose probation sanctions on
[the juvenile] for actions of others, over which he has no control.” (Id. at p. 7; accord,
People v. Cervantes (2009) 175 Cal.App.4th 291, 295 [“Where a probationer is unable to
comply with a probation condition because of circumstances beyond his or her control
and defendant’s conduct was not contumacious, revoking probation and imposing a
prison term are reversible error”]; cf. In re Juan G. (2003) 112 Cal.App.4th 1, 6-7 [error
to impose probation condition requiring juvenile to maintain a “B” average when he
would never be able to comply because his past history indicated that such grades were
“beyond [the juvenile’s] capacity”].)
Minor implores us to use a stricter level of scrutiny because, in his view, the
requirement that he attend school every day impinges his constitutional right to privacy.
To be sure, our state constitution explicitly confers a right to “privacy” that applies to
minors. (Cal. Const., art. I, § 1; Am. Acad. of Pediatrics v. Van De Kamp (1989) 214
Cal.App.3d 831, 844.) But the “scope and application of that constitutional right differs
significantly from the rights enjoyed by adults.” (In re Carmen M. (2006) 141
Cal.App.4th 478, 492; see In re T.A.J. (1998) 62 Cal.App.4th 1350, 1361-1362 [minors
do not have the constitutional right to engage in sexual acts].) More to the point,
California has a compulsory education law that requires minors to attend school.
(Ed. Code, § 48200; Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1090.)
In light of the compelling interest that compulsory education serves, there is no
constitutional right to “ditch” school. We consequently decline minor’s request that we
rely on such a right to invalidate this probation condition.
7
DISPOSITION
The juvenile court is ordered to strike the reference to the maximum term of
confinement in its final order. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________
HOFFSTADT, J.
We concur:
___________________
BOREN, P. J.
___________________
CHAVEZ, J.
8